IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220005599 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Reconsideration letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number on 15 September 2021. 2. The applicant states, as a former service member, who served with Honorable Service Time periods and believes that if not for during his leave time, while having a very traumatizing family members death, he would not have suffered current post- traumatic stress disorder (PTSD) symptoms, that made him have little desire to return to the very difficult tasks of military service. He has now and has had since discharge multiple post discharge mental issues (depression, lack of sleep, mental anguish, drug and alcohol addiction, fear of harm and on) not to mention diabetes, high blood pressure, high cholesterol, anemia, Gout, and multiple surgeries for bone and tendon operations. He feels all were related to his time in service. But what he wants to explain is that he came home on emergency leave (his mother had sent for him because her father had passed away) and they were very close. He requested leave time and was approved for it. Once home, with the task of helping his mother set-up the transfer of his grandfather from which took weeks, because of litigation (his grandfather was given an overdose of some drug (Name of medicine; while in the hospital, that killed him). Once that was done the actual funeral arrangements had to be made and his mother and he were traumatically tired from the whole ordeal and had not finished yet. Since he was the only male home at the time (his other was deceased, was serving in the Army at the time) and there was no help, he had to request for more leave time thruand received pay there. As a very young man, he had no idea, what the impact on his military career would be by not hearing back from his commanding officer or sergeant major. He supposed it was granted, especially when he returned to again to receive pay, and nothing was said about his extended leave. So, he is asking this board to carefully review his request and supporting documents and grant this discharge upgrade request after so many years. 3. The applicant’s service records are available for review. An exhaustive search was conducted to locate the service records, but they could not be found. The only documents available were the documents provided by the applicant, DD Form 214 (Report of Separation from Active Duty), and DD Form 215 (Correction to DD Form 214). 4. The applicant’s DD Form 214 shows he enlisted in the Regular Army on 20 April 1977. He held military occupational specialty 91B, Medical Specialist. 5. He completed 7 months and 8 days of foreign service. According to the Remarks block of his DD Form 214, “his last period of overseas service was Korea.” 6. He was discharged from active duty on 4 December 1978 in accordance with Army Regulation (AR) 635-200 (Personnel Separations), chapter 10 (in lieu of trial by court- martial) with an under other than honorable conditions characterization of service, (Separation Code JFS and Reentry Codes 3/3B). * he completed1 year, 1 month, and 18 days of active service * he had 180 days of lost time from 6 April 1978 to 20 October 1978 * he was on excess leave from 10 October to 4 December 1978 (56 days) 7. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-years statute of limitations. 8. On 15 September 2021, in response to his request to change his date of birth and upgrade from “under than honorable conditions” to “under honorable conditions” due to PTSD, the Board stated: a. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the medical records, documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the advisory findings that no mitigating factors led to the misconduct for his separations. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. b. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to depict the military service of the applicant more accurately. 9. On 17 February 2022, he was issued a DD Form 215 that added award of the Korea Defense Service Medal to his DD Form 214. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. He contends he had PTSD and other mental health conditions that mitigated his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant’s service records were not available for review beyond the documents provided by the applicant; 2) The applicant’s DD214 shows he enlisted in the Regular Army on 20 April 1977; 3) The applicant was discharged on 04 December 1978, Chapter 10 (in lieu of trial by court-martial) with an under other than honorable conditions characterization of service; 4) He had completed 1 year, 1 month, and 18 days of active service, he had 180 days of lost tome from 06 April1978-20 October 1978, he was on excess leave for 56 days from 10 October 1978-04 December 1978; 5) On 15 September 2021, in response to his request to upgrade his discharge due to PTSD, the Board denied his request. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he experienced PTSD and other mental health conditions as a result of his grandfather’s death while he was on leave, which required him to extend his leave. The applicant reported he was unaware his request to extend his leave was not approved by his chain of command, and he was overwhelmed with managing multiple stressors. The applicant did not have a record of behavioral health treatment while on active service. A review of JLV indicated the applicant received medical treatment for substance abuse in 1996. Also, he was diagnosed with Dysthymic Disorder in 2020 and 2021 and provided psychotherapy and psychiatric medication. He again was diagnosed with depression in November 2022 and was provided a comprehensive treatment plan of therapy and psychiatric medication The applicant does not receive any service-connected disability compensation. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his discharge. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD and other mental health conditions that contributed to his misconduct. (2) Did the condition exist, or experience occur during military service? Yes, the applicant contends his PTSD and other mental health conditions occurred while on active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence beyond self-report that the applicant was experiencing PTSD and other mental health conditions while on active service. PTSD and other mental health conditions can be associated with avoidant behavior such as going AWOL, and this type of behavior can be a sequalae to these conditions. However, this is not sufficient to establish a history of these conditions during active service. Nevertheless, the applicant contends he was experiencing mental health conditions that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense, albeit his separation packet is not available for review. The available evidence shows he was charged with an offense punishable under the UCMJ with a punitive discharge. After being charged, he presumably consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. a. The Board reviewed and agreed with the medical advisor’s finding insufficient evidence beyond self-report that the applicant was experiencing PTSD and other mental health conditions while on active service. PTSD and other mental health conditions can be associated with avoidant behavior such as going AWOL, and this type of behavior can be a sequalae to these conditions. However, this is not sufficient to establish a history of these conditions during active service. b. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number on 15 September 2021. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005599 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1